The Benefits of Trying 9/11 Defendants in Federal Court

Thomas Wilner, who represented some of the Guantanamo detainees in their babeas cases in the Supreme Court has an op-ed in todays' Wall St. Journal explaining why the Obama Administration made the correct call in deciding to prosecute the 9/11 detainees in federal court. What's truly frightening is the abundance of ignorant comments to his article.

From my vantage point there is another huge plus to be gained in trying them in federal court. It does allow the public to better understand and digest our terrorism problems. Calling them enemy combatants and keeping their stories, involvements, and acts secretive allows Americans to live in unnamed anxiety. Every great horror movie director knows there is nothing more terrifying than the deadly unknown. Let us know these people to what extent that we can. Let the populace of America have an informed opinion about what we need to do about our terror problems that can be larger than whether or not someone loves the troops or hates the troops.

Especially the idea that treating these people as common criminals is the status they deserve. Hiding them away and "trying" them in secret elevates them to scary, threatening and effective heroes of their cause.

The other day on CNN, Bill Bennett or somebody was wailing and crying about how trying them in civilian court would enable them, particularly KSM, to use the court as a forum to rail against the U.S. and expound on their horrible philosophy. To which Jeff Toobin had exactly the right response. He said, "So what?"

right call in deciding to try KSM here, but it does inevitably give rise to the question of why our court system is not the right venue for all of those being detained, as opposed to slotting each detainee into the particular system that is most likely to result in a conviction. Or in the event that a conviction is not likely, allows them to simply subject them to permanent detention.

There's something a little jarring about boasting about not being afraid of KSM and his cohorts - those whom we believe have a direct connection to the events of 9/11 - while at the same time hedging our bets on the "justice" we feel is appropriate for other detainees. Are we more afraid of the quality of the so-called evidence we have on the others, or is it about how the evidence was obtained?

I think it's all about putting on a show, myself, and it has little to do with the application of actual justice.

Can anyone reconcile Obama's homage to "our legal traditions" and his professed faith in jury trials in the New York federal courts with the reality of what his administration is doing: i.e., denying trials to a large number of detainees, either by putting them before military commissions or simply indefinitely imprisoning them without any process at all?

During his appearance before the Senate Judiciary Committee yesterday, Eric Holder struggled all day to justify his decision to put Khalid Sheikh Mohammed on trial because he has no coherent principle to invoke. He can't possibly defend the sanctity of jury trials in our political system -- the most potent argument justifying what he did -- since he's the same person who is simultaneously denying trials to Guantanamo detainees by sending them to military commissions and even explicitly promising that some of them will be held without charges of any kind.

Once you endorse the notion that the Government has the right to imprison people not captured on any battlefield without giving them trials -- as the Obama administration is doing explicitly and implicitly -- what convincing rationale can anyone offer to justify giving Mohammed and other 9/11 defendants a real trial in New York? If you're taking the position that military commissions and even indefinite detention are perfectly legitimate tools to imprison people -- as Holder has done -- then what is the answer to the Right's objections that Mohammed himself belongs in a military commission? If the administration believes Omar Khadr belongs in a military commission, and if they believe others can be held indefinitely without any charges, why isn't that true of Khalid Sheikh Mohammed? By denying jury trials to a large number of detainees, Obama officials have completely gutted their own case for why they did the right thing in giving Mohammed a trial in New York.

Even worse, Holder was reduced to admitting -- even boasting -- that this concocted multi-tiered justice system (trials for some, commissions for others, indefinite detention for the rest) enables the Government to pick and choose what level of due process someone gets based on the Government's assessment as to where and how they're most likely to get a conviction:

Courts and commissions are both essential tools in our fight against terrorism . . . On the same day I sent these five defendants to federal court, I referred five others to be tried in military commissions. I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law. . . . At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is a federal court.

Does that remotely sound like a "justice system"? If you're accused of being a Terrorist, there's not one set procedure used to determine your guilt; instead, the Government has a roving bazaar of various processes which it, in its sole discretion, picks for you based on ensuring that it will win. Even worse, Holder repeatedly assured Senators that the administration would continue to imprison 9/11 defendants even in the very unlikely case that they were acquitted, citing what they previously suggested was their Orwellian authority of so-called "post-acquittal detention powers." Is there any better definition of a "show trial" than one in which the defendant has no chance of ever being released even if acquitted, because the Government will simply thereafter assert the power to hold him indefinitely without charges?

I understand that sending even a limited number of Terrorism suspects to federal court is politically difficult and controversial, as the last couple of days have demonstrated. But by refusing to embrace and defend the core principle of justice at stake here -- that a distinguishing feature of our political system is that we don't imprison or kill people without charging them with a crime and proving their guilt in a real court, and that military commissions and indefinite detention are un-American (which Democrats argued under Bush) -- the Obama administration has made it far more difficult for it to defend what it is doing, as well as for those who want to defend their decision to give trials to 9/11 defendants.

I can't speak for anyone but myself, but it seems clear to me that the decision to put KSM on trial in federal court, in New York, is the right decision being made for the wrong reasons: it's not about justice, it's about putting on a show.

to be one of those people who just never ventures out of her own bubble to ponder "what's really going on," but I guess I just wasn't put together that way.

You know what I think it is? People who read - and I am a long-time, since-I-was-a-little-kid, love-to-read person - inevitably end up asking questions, of themselves, of others, of authority figures, of government.

We read. Not because we have to, but because we want to, we love to - and therein lies the difference.